Redhead v Redhead
| Jurisdiction | Grenada |
| Judge | Liverpool, J.A. |
| Judgment Date | 07 May 1982 |
| Neutral Citation | GD 1982 CA 8 |
| Docket Number | Civil Appeal no. 2 of 1981 |
| Court | Court of Appeal (Grenada) |
| Date | 07 May 1982 |
Court of Appeal
Haynes, P.
Liverpool, J.A.
Smith, J.A.
Civil Appeal no. 2 of 1981
D.C. Williams for the appellant.
E.W. John for the respondent.
Husband and wife - Matrimonial property division.
The appellant and the respondent were married on the 9th January, 1958, in Grenada and they have seven children. They have been separated since the 20th May, 1978.
By an originating summons filed under section 4 of the Married Women's Property Ordinance (Cap.183) of the Revised Laws of this State, the wife sought the determination of the court on her, entitlement to a pro rata share of the following:
1. A portion of land with a building thereon situated at Hillsborough Street in the city of St. George's.
2. Two lots of land with building thereon situated at Westerhall.
3. A mechanical Tractor Bulldozer with plough and blade;and she also claimed to be solely entitled to certain items of household furniture which are located in the Westerhall building, which was the matrimonial home.
The basis of her claim in respect of the Hillsborough Street property is that she had supplied $4,000.00 out of the sum of $16,000.00 which the property cost; and that she had also expended a further sum of $3,000.00 for repairs to the building to supplement the amount of $8,000.00 recovered from an insurance company after that building had been damaged by fire in 1978. As far as the Westerhall property is concerned, her claim is that she contributed the sum of $15,000.00 towards the purchase price of $40,000.00. She did not allege making any contribution towards the purchase of the mechanical Tractor Bulldozer.
The husband denied that the contributions were made as alleged by the wife and put her to strict proof of her allegations. He also demanded full accountability of the property at Hillsborough Street which he claimed had been rented without his consent.
Having seen and heard the parties and the only witness Mr. Olliviere, who is the wife's brother, the learned justice found as follows:–
“In relation to the Hillsborough property I find that out of the cost of $16,000 the defendant expended $12,000 and the plaintiff $4,000 initially and an additional $3,000 in repairs after the fire damage.
I find that the Westerhall property has two buildings, one that I am satisfied is the matrimonial home and the other is a partly finished building. I find from the evidence that the building of this partly finished structure was started after the de facto separation of the parties in 1978 and is being constructed solely, from the funds of the defendant. I also find that out of the cost of $40,000 expended on the matrimonial home the defendant contributed $25,000 and the plaintiff $15,000.”
He then went on to state the circumstances which he felt that the court ought to take into account in determining the rights of the parties, and the law which was applicable to the matter, in these words:
“This court finds that the special nature of the relationship between a husband and wife inevitably gives rise to difficulties of proof when the marriage breaks down and questions of ownership of property have to be decided. I do not expect that a transaction between the spouses when they are happily married will be evidenced in the same way as an ordinary commercial transcript. Having seen and heard the witnesses I have to try and conclude what was in the minds of the plaintiff and the defendant at the time of the acquisition of the properties in question.
I am satisfied from a reading of the law in this matter that the amount contributed does not itself determine the respective needs.
A wife is not to be put t proof of a contract of a gift as if she wore a stranger. Romer, L.J. made that clear in Rimmer v. Rimmer [1952] 2 All E.R. where he said that “cause between husband and wife ought not to be governed by the same strict considerations both at law and equity as are commonly applied to the ascertainment or he respective rights of strangers….” I accept that as good law and adopt it in my effort to determine the questions asked in this matter.”
The learned judge found that the wife was not entitled to any share either in the mechanical Tractor Bulldozer or in an unfinished house which stands on one of the lots at Westerhall because no contribution towards their acquisition; but in respect of the furnishings and the two houses, he ordered and equal division on following basis:
“I would follow the trend in favour of the principle that where the question is between husband and wife and is a question of the ownership of ‘family assets’ that is, property acquired by one or other of them, as a result of their joint efforts, for the specific intention to decide to which one of them it belongs, equality of interest is fair in the absence of evidence to the contrary and the onus lies in effect, on whichever spouse claims more than an equal share. In so far as the Hillsborough property and the matrimonial home are concerned the defendant is claiming more than an equal share and I am satisfied that from the evidence in this matter that he has not discharged the onus placed in him to prove he is entitled to share greater than equal. I hold that both parties have substantial interests in both Hillsborough property and the matrimonial home with its furnishings in the Westerhall property and it would not be right to assume some more precise calculations of their shares. Equality necessarily follows.
As a matter of law, taking into consideration the principles enunciated above and bearing in mind the legal learning to be found in the majority of cases brought under the Married Women's Property act and more especially the case of Rimmer v. Rimmer [1952] 2 All E.R. 863and Fribance v. Fribance [1957] 1 All E.R. 357 I hold that both the plaintiff and the defendant are entitled to equal shares in the Hillsborough property and the matrimonial home with its furnishings in the Westerhall property.”
And he then proceeded to make this order:
1. That the applicant be given one half share of the property situate at No. 6 Hillsborough Street, in the parish of Saint George and the defendant the other half.
2. That the applicant be given one-half share of the matrimonial home that is the first constructed building measuring 1670 sq. ft. on the property situate at Westerhall in the parish of Saint David and the defendant the other half.
3. That the applicant should receive nothing in the second partly constructed building on the property at Westerhall in the parish of Saint David.
4. That the applicant be given one half shares of the furnishings in the matrimonial home that is of the first constructed building at Westerhall in the parish of Saint David.
5. That the applicant should receive nothing in the moneys received by the defendant for the tractor.
6. Each party to bear his or her own costs.”
The husband appealed against this decision and we were told by learned counsel that he sought to challenge only the findings of the learned justice in respect of the house at Hillsborough Street and the matrimonial home at Westerhall. These are referred to in paragraphs 1 and 2 of the order.
Before embarking too deeply into the law applicable to this case, I think that I ought to comment on the view which the learned justice formed of the parties who gave oral evidence before him, viz: the husband, the wife and the wife's brother, Mr. Olliviere. He had the advantage of seeing and hearing both parties and the witness Olliviere and forming an appreciation of their personality and demeanour. He preferred, for reasons stated by him, the evidence of the wife where the parties conflicted on material issues, and in particular found that the husband did not impress him as a witness of truth; but rather that his attitude appeared as the learned judge put it, “to be that of someone who came to court with the set purpose of denying his wife's case completely regardless of whether he had to lie blatantly in order to do so.”
As Lopes, L.J, pointed out in Savage v. Adam (1895) W.N. 109. where a case tried by judge without a jury comes to the court of Appeal, the presumption is that the decision of the court below on the facts was right, and that presumption must be displaced by the appellant. This statement was approved in Colonial Securities Trust Co. Ltd. v. Massey (1896) 1 Q.B.D. 38. This court was pressed by learned counsel for the husband with the proposition that we have a right in examining the appeal to make our own findings of fact. But be that as it may, it seems clear to me that where a judge whose function it is to making findings of fact, has done so and where there is evidence which clearly early shows that his findings may be justified, it is not the function of an appeal court to take another view and accordingly interfere by substituting its view for that of the judge.
In approaching this matter, therefore, I must bear in mind that it is a well established principle that in reviewing decisions of fact by a court exercising original jurisdiction, a Court of Appeal should attach great importance to the advantage which the trial judge had of seeing and hearing the witnesses give their testimony; but it is likewise well established that the mere fact that a trial judge saw and heard the witnesses does not in every case preclude an appellate court from altering his decision, and may do so if in the circumstances this course of action is justified. See Barrow v. Barrow (1968) 12 W.I.R. 440 at page 442. See also the remarks of Viscount Simon L.C. in Watt v. Thomas [1947] A.C. 484 at page 486; and the observations of J. O. F. Haynes, Chancellor, in Shall v. Melville (1976) 24 W.I.R. at page 35.
I turn now to examine some of the many cases on the subject, and it...
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